The Exclusion of Evidence Illegally or Improperly Obtained: An Unsatisfactory Answer to an Unstated Question
| Pages | 244-248 |
| Date | 01 March 2002 |
| DOI | https://doi.org/10.1108/eb026023 |
| Published date | 01 March 2002 |
| Author | G.L. Davies |
| Subject Matter | Accounting & finance |
Journal of Financial Crime — Vol. 9 No. 3
The Exclusion of Evidence Illegally or
Improperly Obtained: An Unsatisfactory
Answer to an Unstated Question
G. L. Davies
The law with respect to the exclusion, in a criminal
trial, of evidence which is relevant and otherwise
admissible against an accused because it was illegally
or improperly obtained is far from clear. More
importantly, in the author's opinion, it does not
best give effect to its stated purposes; and it may
permit a result which is inconsistent with one of
them. Those stated purposes are:
— the avoidance of the risk of unreliability of
evidence so obtained;
— the preservation of judicial integrity by ensuring
that courts are not or are not perceived to be con-
doning or encouraging unlawful or improper
conduct on the part of those whose duty it is to
enforce the
law;1
— the discouragement of law enforcement officers
from engaging in such conduct;
— to protect against the consequence of breaches of
rights by such conduct; and
— the avoidance of undue prejudice to the accused
by the admission of evidence the prejudicial
effect of which exceeds its probative value.
The first of these is the subject of both an exclu-
sionary rule and an exclusionary discretion based on
fairness to an accused. There is a rule which excludes
confessional or admission evidence which is not
voluntary in the sense that it was induced by threats
or promises by a person in authority. Unreliability,
or the risk
thereof,
was originally the sole rationale
for this rule. But a second rationale which later
emerged is abhorrence of ill-treatment or improper
pressure. However, even where there has been no
threat or inducement, but where illegal or improper
conduct by a law enforcement officer is such as to
induce doubt about the reliability of a confession or
admission there is a discretion to exclude it on the
ground of unfairness.
The second and third of these purposes are, where
the conduct is oppressive, the subject of the exclu-
sionary rule to which reference has just been made.
But even where it is not it may nevertheless be of
the kind where admission of evidence obtained in
consequence of it may, or may be seen to, diminish
judicial integrity; and where exclusion of it may be
thought to discourage conduct of that kind. These
are the subject of a discretion based on public policy.2
The fourth purpose is included because of
the reliance in the majority judgment and in the
judgment of Kirby J in Swaffield and Pavic3 on
breach of the accused's right to silence in order to
exclude evidence, at least in the case of Swaffield,
on the basis of unfairness to the accused. In doing so
they were expanding the meaning of unfairness
beyond unfairness of the trial, the meaning it had
hitherto been given. It seems likely that their
Honours thought it necessary to so expand it in order
to provide some remedy for what they perceived to
be a breach of a basic right by law enforcement officers.
In this sense the underlying concern is similar to that
of the second and third purposes; that otherwise such
breaches may be committed with impunity.
The fifth of these purposes is the subject of a
general discretion more commonly held to arise
in similar fact cases and in cases involving cross-
examination on character. Because it will only ever
arise in respect of evidence which is of marginal
probative value, it may be disregarded in this context.
There is no question as to the desirability of giving
effect to any of those purposes. Quite the contrary.
But whether the exclusion of evidence so obtained
is an adequate means of giving effect to any of
them must be questioned. It is perfectly understand-
able that courts should have been concerned about
illegal or improper conduct by law enforcement
officers and that, in the absence of some other
remedy, they should have attempted to devise one.
Nor does the author think it fair to criticise them
because, as it seems, the remedy of excluding evidence
is inadequate to give effect to its stated purposes.
There is no other remedy which the courts could
have given. However, instead of having a desirable
effect, the exclusion of reliable, relevant and otherwise
Journal of Financial Crime
Vol.
9,
No.
3,
2002,
pp.
244-243
© Henry Stewart Publications
ISSN 1359-0790
Page 244
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